(dissenting). The act of Congress providing for the calling in of two judges in certain applications for temporary injunctions is a restrictive statute, not at all flattering to the intelligence and impartiality of the District Judges of the country, and it does not in my judgment call for a liberal construction, and so I am not inclined to broaden the statute to cover a supposed intention of the lawmaker, but rather disposed to leave the matter to the Supreme Court, and in the meantime hold that the eminent lawyers in the judiciary committee of Congress who framed the same meant exactly what they said and said exactly what they meant.
I appreciate the force of Judge SHELBY’S reasoning in regard to the proper construction to be given to the statute, and under the peculiar circumstances of this case I am not disposed to make any further point in the matter.
Whether, in view of the previous and just concluded litigation between the same parties, the Railroad Commission of Alabama had a right to disregard the final decree rendered in the case and pay no attention to the seventh paragraph thereof (a paragraph, by the way,, that the Supreme Court in former decisions and in the lately decided railroad cases seems to think of some force, and a necessary part of a like degree), has, I understand,'been substantially passed upon by Judge GRUBB, and therefore I am disposed to accept Judge SHELBY’S conclusions in that respect, and make no point against the same, although fully satisfied that it would have been more respectful and seemly if the Railroad Commission had made application to the court under the seventh paragraph- of the final decree, alleging changed conditions and asking proper relief.
The supplemental bill 'brings before us at this hearing the entire litigation between the parties, and it seems to me that at this time, and acting on this application for an interlocutory order, all the matters in contest in the main case and settled by the decree rendered are for the present inquiry res adjudicata; and no presumption in favor of. the action of the Railroad Commission, and no presumption generally in f-avor of statutory boards, can now be interposed to reopen any of the issues that were passed upon and decided in the aforesaid final decree. And if there were any presumptions to be indulged on this hearing, they preponderate on the side of the complainant, who is en*57titled to all the results coming from adjudicated issues in the main case. If anything was settled in the main case, it was the value of the property of the complainant in the state of Alabama employed in intrastate traffic, and following that, and incidental to the determination of the issues in the case, the apportionment of the use of the property as between freight and passenger traffic.
As I read the final decree, which is a part of the law of the case we are now considering, the court-decided that the statute requiring a maximum 2 (/¿-cent passenger rate on the complainant's railway and branch lines in Alabama was void, as confiscatory, and neccssaiily in and of itself void. It is not to be presumed that the court could or would declare a statute of the state void which was not tainted with unconstitutionality. I paid attention to the argument (not, however, based on facts as found by the master and approved by the court) that the 2'J/2-cent statute was only decreed void as a part of a system, and I think the same without force. Kvery statute of a state is part of a system of all the laws of the state, and there is nothing in the act which, as one dealing with one only subject, shows it was to stand or fall with other statutes passed by the same Legislature.
With this preliminary the question before us is whether, on the record and showing made by the parties, a case has been made which entitles the complainant to an injunction maintaining the status quo pending a final hearing upon the issues presented by the bill. Certainty that the complainant will recover on final hearing is not called for. Decided probability, based on the facts presented, is all that we are expected to require on this hearing. The evidence before us is voluminous, general, specific, and detailed, involving matters of the building, costs, expenses, receipts and disbursements, maintenance, and operation of the complainant’s railway and numerous branches, intrastate and interstate, in Alabama, and also much of the same located in other states, and some involving costs, expenses, disbursements, and profits in practices of other railroads in and out of Alabama. To analyze the evidence at present and support my conclusions in the case will take more time than T have at my disposal or the exigencies of the case will allow (incidentally I refer to the voluminous briefs in the case); but to all these matters I have given careful examination and consideration in the light of decisions cited and all the very late decisions in rate cases by the Supreme Court of the United Slates, and my conclusions are that no changed conditions arising since the rendition of"the final decree in the main case have been shown making a 21/4-cent passenger rate reasonable and compensatory on complainant's lines, and that the complainant has ma.de a case that entitles it to an injunction pending the suit — a case which, if as well established by evidence contradictorily taken, will entitle the complainant to relief on final hearing.
On Application for Appeal and Supersedeas, or for a Continuance of the Restraining Order Pending Appeal.
The plaintiff’s petition for an interlocutory injunction having been •denied, the plaintiff presented a petition praying for an appeal to the *58Supreme Court and for a continuance of the restraining order heretofore granted, pending the appeal. After argument and consideration, the court entered the following order:
“This cause coming on to be heard upon the application of the plaintiff, the Louisville & Nashville Railroad Company, for the allowance of an ai>peal direct to the Supreme Court of the United States from an order of the District Court, composed of two Circuit Judges and a District Judge, denying the petition of the plaintiff for an injunction pendente lite, as prayed for in its supplemental bill in this cause, and upon the application of the plaintiff for a supersedeas and an order restraining the enforcement of an order of the Railroad Commission of Alabama set out in its supplemental bill;
“And the court being of opinion that, owing to uncertainty as to the proper construction of section 266 of the Judicial Code, with relation to the authority of the court to restrain the enforcement of the order, pending the appeal, and in view of the present status of the case, and the pendency of other cases that are likely to present the same question for decision, and of the importance of a final and authoritative decision thereof to the public and the litigants, the application for a supersedeas and for a restraining order would better be presented to the Supreme Court:
“It is therefore ordered that the plaintiff’s application for the allowance of the appeal and for supersedeas or a restraining order against the enforcement of the order of the Railroad Commission of Alabama, pending the appeal, be denied, the court not passing upon the merits of the application, and without prejudice to the right of the plaintiff to renew its application for an appeal and for a restraining order, pending the appeal; in the Supreme Court, or as it may be advised.'
“Given ‘this 13th day of September, 1913.”